Opinion
No. 110 SSM 8.
Decided May 8, 2007.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered November 2, 2006. The Appellate Division affirmed a judgment of the Supreme Court, Albany County (Thomas J. Spargo, J.), entered in a proceeding pursuant to CPLR article 78, which had granted respondents' motion to dismiss the petition for lack of personal jurisdiction.
Petitioner inmate sought to commence a proceeding to review a determination denying a grievance involving his failure to participate in a substance abuse program. Respondents moved to dismiss the proceeding based upon petitioner's failure to comply with the service requirements of the order to show cause.
Matter of Elliott v Butler, 34 AD3d 878, reversed.
Rodney Elliott, appellant pro se.
Andrew Cuomo, Attorney General, Albany ( Kate H. Nepveu, Barbara D. Underwood and Daniel Smirlock of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, without costs, and matter remitted to Supreme Court, Albany County, for a traverse hearing. The parties' submissions on the motion to dismiss raise issues of fact requiring a traverse hearing.